NO. 73,692






Womack, J., filed a concurring opinion.

I join the Court's opinion, including its rejection of the appellant's insufficient-evidence argument. There is an additional, historical support for the Court's construction of the term "prospective witness" in the retaliation statute. The term was added in 1983 to cure a defect that this court had found in 1982.

In its original enactment in 1973, the offense of retaliation was defined as conduct "in retaliation for or on account of the service of another as a public servant, witness, or informant." (1) Neither "witness" nor "informant" was defined, possibly because the terms were not in the proposed penal code of 1970, which limited the offense of retaliation to acts against public servants or former public servants. (2)

In 1982 we decided that "the term 'witness' means 'one who has testified in an official proceeding,' and does not include a mere 'prospective witness.'" (3) We noted the comment of drafters of the penal code. (4) The comment was, "'Witness' is not defined, but presumably the term will be construed to mean only one who testifies before an official proceeding, cf. Section 36.05; otherwise, location of the 'witness' part of the offense in this chapter would be inappropriate." (5) We also compared the retaliation statute (section 36.06) with the tampering-with-witness statute (section 36.05), which defined the offense as acts toward "a witness or prospective witness." (6) Our holding was made "[i]n light of the fact that the legislature has, by statute, differentiated offenses against 'witnesses' only and 'witnesses and prospective witnesses.'" (7)

The next legislature eliminated the discrepancy between the statutes. It did so by amending the retaliation statute to protect "prospective witnesses," just as the tampering statute did. (8)

We know, from legislative history, the reason for the inclusion of "prospective witnesses" in the tampering statute: "Note that the person whom the actor attempts to influence need not actually be a witness. Tampering with a prospective witness creates a risk of interfering with an official proceeding even if the person bribed or threatened has not been officially called to offer evidence." (9) I think that the legislature amended the retaliation statute for the same reason. To construe the statute as this appellant proposes would be contrary to that policy. The text of the statute does not make the appellant's proposal any more likely than the construction we have given it, and our construction is in accord with the legislative history, while his is not.

En banc.

Delivered September 25, 2002.


1. Penal Code Act, 63d Leg., R.S., ch. 399, 1, sec. 36.06(a), 1973 Tex. Gen. Laws 883, 948.

2. See State Bar Committee on Revision of the Penal Code, Texas Penal Code: A Proposed Revision 36.06 (Final Draft 1970).

3. Benson v. State, 681 S.W.2d 708, 711 (1982) (on original submission).

4. Id., at 710.

5. Seth R. Searcy & James R. Patterson, Practice Commentary, 4 Vernon's Annotated Codes: Penal Code 22, 23 (1974).

6. Benson, 661 S.W.2d at 710 (quoting Penal Code Act, 63d Leg., R.S., ch. 399, 1, sec. 36.05(a), 1973 Tex. Gen. Laws 883, 947).

7. Id., at 711.

8. Act of June 19, 1983, 68th Legislature, R.S., ch. 558, 4, 1983 Tex. Gen. Laws 3237, 3238.

9. State Bar Committee on Revision of the Penal Code, supra note 2, 36.05 Committee Comment. When the committee's proposals were enacted without substantive change, as the tampering statute was, the drafters' comments are the most important expression of the legislative history. See Aguirre v. State, 22 S.W.3d 463, 471 (Tex. Cr. App. 1999).